The People v. Eugene Lynn Miller

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)

August 25, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,v.EUGENE LYNN MILLER, DEFENDANT AND APPELLANT.

(Super. Ct. No. CR100935)

The opinion of the court was delivered by: Hoch , J.

P. v. Miller

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Eugene Lynn Miller entered a negotiated plea of no contest to transportation of methamphetamine and possession of a stolen vehicle in exchange for dismissal of other charges and enhancements, and the imposition of a stipulated prison term. He also agreed to forfeit money found on his person. The court imposed sentence in accordance with the agreement and awarded conduct credits equal to defendant's presentence custody. It subsequently awarded $10,257.56 in restitution to the victim after a hearing.

Defendant's ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with the latter, we will provide a summary of the offenses and the proceedings in the trial court.

The stipulated factual basis for defendant's plea was the transcript of the preliminary hearing. Early on a February 2010 morning, a deputy in the Dunnigan area observed a pick-up truck driving unusually: it had exited the freeway, but after seeing the deputy approach on the overpass, it crossed the road and reentered the freeway after initially appearing to make a turn. The deputy followed the truck, which crossed over the fog line three times. The truck exited at the nearby rest area when the deputy activated his lights. Defendant got out of the truck, and admitted that he did not have a valid driver's license. He consented to a search of his person, during which the deputy found a plastic baggie with methamphetamine in it. In an inventory search of the truck, the deputy found additional methamphetamine in an ice chest and in a water container. There was also a disassembled motorcycle in the bed of the truck. Tracing a serial number on the frame, the deputy determined that it had been reported stolen in November 2009 from the victim.

After a preliminary hearing on the five-count complaint, the magistrate held defendant to answer on all counts and the prior drug conviction enhancements. The information reiterated the charges in the complaint.

With motions to set aside the information and in limine pending, the parties announced the agreement we related above. Before accepting his plea, the trial court confirmed defendant's written waivers of his constitutional rights at trial, acknowledgements of the collateral consequences of the plea, and recitations that this was a voluntary and informed change of plea after consultation with his attorney. After accepting his plea, the court solicited his waiver of the right to have the same judge impose sentence. (People v. Arbuckle (1978) 22 Cal.3d 749, 756.)

In sentencing defendant, the court imposed a restitution fine of $200 (and the stayed parallel fine on revocation of parole), a laboratory-analysis fee of $50 with a lump sum of $140 in penalty assessments, a drug-program fee of $150 with a lump sum of $420 in penalty assessments,*fn1 and a "construction fee" of $40 for each count (which is in fact the amount of the mandatory security fee (Pen. Code, § 1465.8), as reflected in the abstract). The court neglected to include the mandatory court construction fee of $30 per count in its oral rendition of judgment, although it is included in the abstract. The court set the matter for a hearing on the prosecutor's request for restitution reflecting the sum of the victim's deductible ($500) and the $9,657.56 check from the victim's insurance company for the value of the motorcycle.

At the restitution hearing, the prosecutor submitted an exhibit in support of the amounts claimed, showing that the insurance company had based its figure on the average of three sources, less salvage value of the parts. Defense counsel's sole objection was ordering restitution for receipt of a stolen vehicle rather than for actually stealing a vehicle. The court ordered restitution in the amount requested.

Defendant filed a timely notice of appeal. He did not seek a certificate of probable cause.

We appointed appellate counsel for defendant. Counsel has filed an opening brief setting forth the facts of the case and asking us to review the record to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days have elapsed, and we have not received any communication from defendant.

The oral pronouncement is the actual rendition of judgment; the minutes and abstract cannot add anything substantive to it. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.) We are able to modify the judgment on appeal with respect to mandatory impositions (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157), so we will include the construction fee overlooked in oral rendition of judgment. We also note the abstract of judgment has a math error: $500 plus $9,657.56 should total $10,157.56, but the total on the abstract is $10,257.56. We will direct the trial court to prepare an amended abstract reflecting the correct total.

As we must direct amendment of the abstract in any event, we note that imposing an aggregate penalty assessment does not allow the Department of Corrections and Rehabilitation to "fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency," thus "assist[ing] state and local agencies in their collection efforts" (recognizing the tedious and perhaps pro forma nature of this requirement). (People v. High (2004) 119 Cal.App.4th 1192, 1200.) There are many different penalty assessments. (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1530.) The trial court shall therefore amend its abstract to designate which of these penalty assessments are included in the aggregate totals.

DISPOSITION

The judgment is modified to reflect a construction fee of $30 per count. As amended, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment reflecting restitution in the amount of $10,157.56 and designating which penalty assessments are included in the totals, and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur: RAYE , P. J. BLEASE , J.

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